Vermont Supreme Court at VLS

29 Mar 2016

Vermont Supreme Court at VLS


Oakes Hall

Oakes Hall

The Vermont Supreme Court will hear oral arguments in seven cases during the high court's annual session at Vermont Law School on Wednesday, March 30, in Oakes Hall on the VLS campus. The session is open to the public. Vermont Court Rules apply for media coverage.

The court will consider the following cases:

C&S Wholesale Grocers, Inc. v. Department of Taxes, 15-282 (9:30 a.m.)
C&S Wholesale Grocers is a wholesaler and transports perishable groceries to retailers. To ensure that the perishable groceries are received by the retailers at a safe temperature, appellant packs the groceries in reusable fiberglass containers which are transported by refrigerated trailers. During an audit, the Vermont Department of Taxes identified the purchase of the reusable fiberglass containers, for which appellant had not paid sales and use tax. At a hearing before the Department of Taxes, appellant challenged the assessment of a sales and use tax for the containers and requested a refund for sales and use tax paid at the time of purchase for the diesel fuel used to run the trailers' refrigeration units. The Commissioner of Taxes upheld the assessment, determining that the exemption for packaging material did not apply to the reusable containers or to diesel fuel used to refrigerate trailers during transport. The trial court upheld the Commissioner's decision, finding that the exemption for packaging in 32 V.S.A. § 9741(16) does not extend to durable equipment like the reusable containers or to the diesel fuel. The trial court also affirmed the Commissioner's assessment of penalties, which was raised for the first time in appellant's reply brief. Appellant now appeals the trial court's decision, challenging the court's finding that the reusable containers and diesel fuel are not exempt under 32 V.S.A. § 9741(16) and its refusal to address the penalties assessed by the Department of Taxes. 

In re Costco Stormwater Discharge Permit, et al., 15-372 (10 a.m.)
Costco owns property in Colchester, where it operates a members-only discount retail store. The store is a short distance from the junction of I-89 and Routes 2 and 7. This appeal concerns Costco's attempts to expand their store by adding a discount fueling station for its members. In August 2015, the Environmental Division conducted a multi-day trial and approved Costco's plans regarding the proposed fueling station. Two nearby gas stations appealed, arguing the trial court made a number of evidentiary errors during the trial and misapplied the law to the facts in the case. Specifically, the neighboring gas stations contend that: (1) the trial court's findings regarding the increase in traffic violated Vermont Supreme Court precedent; (2) the trial court lacked jurisdiction to approve Costco's wetlands application; (3) the trial court improperly excluded expert testimony regarding Costco's stormwater modeling; (4) the trial court improperly concluded Costco was not impacting a Class II wetland; and (5) the trial court improperly found that Costco's stormwater system would prevent untreated stormwater from entering a Class II wetland. Appellants ask this Court to reverse the trial court and remand for a new trial.

Citibank (South Dakota) v. Department of Taxes, 15-280 (10:30 a.m.)
Sears, Roebuck & Co v. Department of Taxes, 15-281 (10:30 a.m.)
Citibank provides credit card accounts through Sears to its retail customers, who use the credit cards to make purchases at Sears's stores. Citibank pays Sears the necessary funds to cover both the sales price and Vermont sales tax on the customers' purchases. Several credit card users who made purchases at Sears defaulted on their Citibank credit card debt. After determining that the accounts were uncollectable, Citibank wrote off the accounts as "bad debts". Both Sears and Citibank claim that they should be given a sales-tax exclusion for sales related to bad debts under 32 V.S.A §9780, which provides tax exclusions for worthless debts. The Commission of Taxes determined that Citibank and Sears, both separately and jointly, are not eligible for sales-tax exclusion. The trial court affirmed the Commission of Taxes' determination. Citibank and Sears have appealed, arguing that they are eligible to receive the sales tax-exclusion.

Kurt Daims & Craig Newbert v. Town of Brattleboro, 15-317 (11:30 a.m.)
Appellants, Brattleboro residents, submitted three separate petitions to amend the town charter. After establishing dates for public hearings on the petitions and issuing warnings notifying the voters of the date, time, and location of the meetings, the town selectboard approved and issued an information sheet explaining the impact of the proposed amendments. The information sheet was distributed to local news organizations and representative town meeting members, and was posted on the town's website.  At the town meeting, the three petitions were defeated. Appellants filed suit, arguing that the selectboard interfered with the voters' right to amend the town charter. Appellants maintained, among other things, that the selectboard exceeded its authority in disseminating the information sheet and violated the law by adding "fragments of commentary" to the petitions. The town moved for summary judgment, and the trial court granted its request. The trial court found that appellants failed to demonstrate any violation of the law, and that their claims were largely contradicted by the facts. The trial court further found that the selectboard's actions did not justify the extraordinary remedy of election invalidation sought by appellants. Appellants appealed the trial court's decision granting summary judgment in the town's favor. 

State v. D.H., 15-254 (1:30 p.m.)
State v. B.C., 15-263 (1:30 p.m.)
This consolidated case concerns issues relating to two criminal defendants suffering from mental illnesses. Both were initially charged with simple assault. After hearings, the charges against them were dismissed and they were committed to the care and custody of the Commissioner of Mental Health for a period not to exceed 90 days. In each case, the State motioned to extend this period of care and custody against the objections of the Department of Mental Health. The court found that "only the Commissioner of [Mental] Health has the authority to request a hearing on extending a 90 day order." On appeal, the State raises two arguments. First, it argues that it has standing to request an extension of a 90-day care and custody order. Second, it argues that the Department of Mental Health illegally discriminates against criminal defendants on the basis of neurological disability; in other words, that defendants who suffer from illnesses like schizophrenia or depression receive favored treatment, while defendants who suffer from illnesses like autism, dementia, Huntington's Disease do not receive adequate treatment.

Jill Rinehart Dabroski, MD v. Eric R. Svensson, 15-350 (2 p.m.)
In this appeal, father seeks access to the mental health records of his two sons. Father and mother divorced in 2004. Although mother has sole physical and legal rights over the children, 15 V.S.A. § 670 indicates that a noncustodial parent shall not be denied access to a minor child's records solely because the noncustodial parent does not have parental rights or responsibilities. Despite this language, the trial court denied father's request for the records because the Health Insurance and Accountability Act of 1996 (HIPAA) preempted § 670. Father argues on appeal that HIPAA does not preempt § 670. Further, father contends that neither the common law nor statutory privileges prevent him from accessing the records. Finally, father claims the trial court erred by denying his request for the records without a hearing or additional findings.  

Martin Morales a/k/a Serendpity Morales, 16-043 (2:30 p.m.)
Under the Rules of the Vermont Supreme Court, it is a crime to engage in the unauthorized practice of law.  Defendant is presently incarcerated and is colloquially known as a "jailhouse lawyer." Defendant has not been admitted to practice law in the State of Vermont. On February 10, 2016, the Bennington County State's Attorney's Office filed an information with the Supreme Court charging defendant with six counts of unauthorized practice of law and criminal contempt. The case raises a few questions of first impression. First, what are the contours of the common law crime of unauthorized practice of law and did defendant in fact engage in the unauthorized practice of law. Second, what is the correct procedure for filing any information that alleges violations of the common law crime of the unauthorized practice of law. Finally, the case involves issues of constitutional significance, namely, whether a finding of criminal contempt against a "jailhouse lawyer" interferes with prison inmates' constitutional right of access to the court. 

Questions? Concerns? Contact Kathy McCullough at